ORDER (ORAL) Ashok Agarwal, J.- Prosecution had come up with a charge- of rape. That charge, it has miserably, failed to make good. The trial Court has characterised the evidence of the prosecutrix as exaggerated. It has found the accused guilty of a lesser offence, that of indecent assault. While appreciating the evidence of the prosecutrix, whether the grain can be removed from the chaff and her evidence can be accepted in part, for upholding a conviction u/s. 354, I.P.C. is a question that arises for consideration in the present appeal. 2. The accused is a young married man, having two children. Similarly, the prosecutrix, who is P.W. 2 Gangubai, is also a young married woman, having two children. Both belong to the Adiwasi Sect. 3. The scene of the incident is a stream-let known as "Mawala Nala" which is located at a distance of about one kilometre from village Dhagur, Taluka Dindori, District Nasik. The incident is alleged to have t8ken place at around. 7.00 a.m. on the 12th of July, 1986. At that time the monsoon had already set in and it had rain on the previous day of the incident. The place is located near the field of Upendra where Gopala, the husband of the prosecutrix, was employed. At the material time, several villagers were present in Upendra Mala. They were engaged in plucking the crop of tomato. Gopala had also gone there to work at that time. Nearer to the village Dhagur there is a bore-well, which is located at a distance of about 100. The villagers use the bore-well to fill water. Though the spring, where the offence is alleged to have taken place, is located at a distance of about one kilometre away from the village, the prosecutrix, claims that at the material time she had gone there to fill water. It has come in evidence that the spring water is not used by the villagers for fetching water for drinking. It is used by cattles. It has further come in evidence that there is some alternative source or water in the spring but that is at a distance of about two furlongs from the place of the incident. The spring, at the place of the incident, was four fingers deep. The place of the incident is not a secluded or a covered place. It is visible from Upendra Mala. The spring, at the place of the incident, was four fingers deep. The place of the incident is not a secluded or a covered place. It is visible from Upendra Mala. Such is the situation is respect of the scene of offence as is disclosed from the ocular evidence and the panchanama of the scene of offence (Exhibit 22) which has been proved by the Panch witness P.W. 8 Baburao Pardhi. 4. As already stated, the prosecutrix, in the case is P.W. 2 Gangubai. She resides with her children, husband' and mother-in-law.' Her mother-in-law is P.W. 4 Kashibai. Gangubai is reported to have narrated the incident to Kashibai soon after the incident. While she was narrating the incident their neighbour P. W. 6 Dagubai was also present. She happens to be the sister of the Sarpanch, who is P.W. 7 - Madhav Tongare. After narrating the incident to her mother-in-law Kashibai, Gangubai went and informed the incident to the Sarpanch Madhav Tongare. Before that, while Gangubai was returning from the scene of offence after the incident in question, and before she reached home and informed the incident to her mother-in-law, she met P.W. 5 Lilabai Korde on the way. The two are not consistent in their versions but Lilabai has stated that she found Gangubai in a frightened state. She also found that the upper garment of Gangubai was wet. As far as Gangubai is concerned, she has stated that Lilabai asked her as to how she had received injury on her neck but as Gangubai was in a frightened mood she did not speak anything and reached her house. Lilabai has not spoken of noticing any injury on Gangubai. As against this, the version of Gangubai in her F.I.R. is quite different i.e. Lilabai asked her as to why she was wet and since she was frightened she could not state anything and did not disclose anything about the incident to her. 5. After Gangubai reported the incident to the Sarpanch, she took the Sarpanch and showed him the scene of offence. They, thereafter, in the company of her husband Gopala went to the Dindori Police Station. There, Gangubai lodged her First Information Report (Exhibit 12) and the same was recorded at about 2.30 p.m. by P.W. 10 a Head Constable, Laxman Borse. 6. The investigation was taken over by P.W. 11, P.S.I. Khanderao Patil. They, thereafter, in the company of her husband Gopala went to the Dindori Police Station. There, Gangubai lodged her First Information Report (Exhibit 12) and the same was recorded at about 2.30 p.m. by P.W. 10 a Head Constable, Laxman Borse. 6. The investigation was taken over by P.W. 11, P.S.I. Khanderao Patil. Both Gangubai as also accused were sent to the Civil hospital at Nasik for medical examination; Accused was examined by P.W. 1 Dr. Ajit Patil. On examination, he found that there was no smegma on his penis. There were abrasions on both knee joints each measuring 1" x l". There was an abrasion on right elbow joint 1/2" x 1/2" and an abrasion on left elbow joint 1" x 1/2". The medical certificate in respect of the injuries found on the person of the accused is at Exhibit 10. Gangubai was examined by P.W. 3 Dr. Jagdish Gaidhani. On examination, he found three abrasions on the anterio lateral aspect of the neck on the right side from above downwards, they were linear. They were accompanied by contusions. Margines were ill-defined. There were no stains of semens or blood on vulva or the pubic or thigh. No injury except the one on the neck was seen. The injury certificate in respect of the aforesaid examination is at Exhibit-14. The clothes of the accused were seized under Panchanama (Exh. 16) and those of Gangubai under Panchanama (Exh. 17). Since Gangubai was found to have sustained scratch marks at her neck the clippings of the nails of the accused were also taken. These articles were sent to the chemical analyser whose report is at Exhibit 30. The report shows-that the short pant of the accused had two semen stains. In regard to the nail clippings neither blood nor foreign matter like skin was detected. As far as the Saree of Gangubai is concerned, it was not found to be stained either with blood or with semen. The same was not even found to be stained with mud. This is the background in which one has to appreciate the evidence of the prosecutrix Gangubai. 7. In her evidence, Gangubai has stated that for bringing water, they have to go about a kilometre away. The water is brought from a spring in the nala. She knows the accused who is of her village. This is the background in which one has to appreciate the evidence of the prosecutrix Gangubai. 7. In her evidence, Gangubai has stated that for bringing water, they have to go about a kilometre away. The water is brought from a spring in the nala. She knows the accused who is of her village. The accused was residing with his father in-law in a hut in a field which is located about 200' to 300' away from the spring. 8. In regard to the day of the incident, she stated that her husband had gone to work in the field early before sun-rise. After sun rise at about 7.00 or 7.30 a.m. she went with a pot for bringing water from the spring. She went alone. On reaching the spring she first started cleaning the water. Accused came from behind and suddenly removed her (9 yard) Saree from behind. She threatened that she would inform the incident to her husband and that she did not like such an act. Accused then put pressure on her throat by his hands. He threatened to kill her if she raised cries or told anything to anybody. The accused then removed her Saree upward and pulled his pant down. She was thrown down on the ground. Then he fell over her and committed sexual intercourse. He then asked her to take oath in the name of her children that she would not tell the incident to anyone. She was then released by him. He lifted her and put her in the water of spring. Accused then went towards his house. She hurriedly filled the pot with water which had become muddy as she was thrown in the spring. She then went towards her house. This is her version in respect of the main incident in question. Let us now see what she had to say in respect of this part of the incident in her First Information Report (Exhibit 12). In that report, she has stated that she met with Yamunabai Tongare while who was on her way to the spring. Yamunabai was returning from the Spring. This Yamunabai has not featured anywhere in the evidence before the Court. Gangubai has further, in the First Information Report, stated that she was cleaning the pot by sitting near the spring. In that report, she has stated that she met with Yamunabai Tongare while who was on her way to the spring. Yamunabai was returning from the Spring. This Yamunabai has not featured anywhere in the evidence before the Court. Gangubai has further, in the First Information Report, stated that she was cleaning the pot by sitting near the spring. At that time the accused came there, he cleaned his hands in the spring and without speaking anything came behind her and started removing her Saree from back side. At that time she told him that she would disclose it to the members of her family. He then pressed her throat by his hand and threatened her that if she disclosed about the incident to anyone, he will kill her. Thereafter, he pulled down his half pant and lifted up her Saree by the other hand and penetrated his male organ in her vagina and made her facing towards the sky and committed sexual intercourse till his semen came out. After the semen came out he slept for a short time over her person by keeping his head on her chest. Thereafter he asked her to take oath of her children that she will not disclose about the incident to anyone. He made her to take oath accordingly. He, thereafter, put on his half pant, lifted her up and then threw her down in the spring. Her clothes got wet and were stained with wet mud. Since her throat was pressed and his nails had penetrated in her neck, she sustained abrasions. The accused then went to his house. She, in a frightened mood, filled up the pot with muddy water and proceeded to her house. This is the version which the prosecution wants us to believe for recording an order of conviction against the accused. 9. As far as her case that she was forcibly thrown on the ground and she was subjected to sexual intercourse, which intercourse was carried on till the semen of the accused was discharged in her private part, the medical evidence on record completely belies her story. Gangubai has come up with a case that the whole incident was forced upon her, she was an absolutely unwilling partner, she was felled on the ground and accused forced himself on her and committed sexual intercourse upon her. Gangubai has come up with a case that the whole incident was forced upon her, she was an absolutely unwilling partner, she was felled on the ground and accused forced himself on her and committed sexual intercourse upon her. If this be so, it is surprising that apart from the scratches which were found on her neck no other corresponding injuries are found on her person. In her First Information Report she claims that the accused continued the sexual intercourse till his semen was discharged in her private part. The medical evidence as also the report of the Chemical Analyser does not lend any assurance to this part of her case. According to the prosecutrix she had sustained scratches on her neck because the accused had pressed her neck and his nails had caused the abrasions. The report of the Chemical. Analyser in regard to the nail clippings is negative. Neither blood nor foreign matter like skin was detected. Her Saree is not found to be stained either with semen nor it is found to be soiled with mud. Swab from her vagina and sample of pubic hair was sent to the Chemical Analyser, the same are not shown to contain semen. There is no report of the Chemical Analyser in respect of the swab. Hence, it cannot be held that the same contained semen. In the circumstances, it is impossible to subscribe to the case of rape which has been deposed to by the prosecutrix. 10. A question that arises for determination is, whether she can be believed for bringing home a guilt against the accused for a lesser offence of indecent assault or of causing hurt Once, the prosecutrix is found to be false in respect of the major incident it cannot be denied that her evidence requires close scrutiny before an order of conviction can be recorded against the accused. 11. The prosecutrix claims that she had gone to the place of incident to fill water. The place is in a spring at a distance of about once kilometre from the village. It has come in the evidence that there is a bore-well which the villagers use for filling water. The same is located at a short distance of 100', from the village. The place is in a spring at a distance of about once kilometre from the village. It has come in the evidence that there is a bore-well which the villagers use for filling water. The same is located at a short distance of 100', from the village. We have further in evidence that the spring where the prosecutrix went to fill water is never used by the villagers for drinking but the same is used for cattle. There is an alternate source of water in the spring but that is away from the place of the incident which is at a distance of about two furlongs. As far as the spring near the scene of the incident is concerned, it is only four fingers deep. The reason given by the prosecutrix to go to the scene of offence is that the bore well was crowded. In my view, the reason given by the prosecutrix to go to the scene of offence is improbable if not impossible. 12. The place of the incident is open to the sky. It is not a covered place nor is it a secluded place. The same is visible from the field of Upendra, a field where the husband of the prosecutrix had gone to work. In the field, the work-of plucking tomatoes was in progress. Several persons, including the husband of the prosecutrix, were engaged in the work of plucking tomatoes. In the circumstances, it is highly improbable that the accused would venture to commit the act in question in broad day light which could be within the vision of several persons. 13. According to the prosecutrix, while she was on her way back to her house after the incident, she met Lilabai. Lilabai asked her how she had sustained the injuries on her throat. According to the prosecutrix as she was in a frightened mood she did not state anything and proceeded to her house. As far as Lilabai is concerned, she has stated that when she met Gangubai, she found her wet and she was trembling. She went away without speaking word. Hence, it would appear that Lilabai does not corroborate the version of the prosecutrix that Lilabai found injuries on her neck and she enquired about the cause of injuries. As far as Lilabai is concerned, she has stated that when she met Gangubai, she found her wet and she was trembling. She went away without speaking word. Hence, it would appear that Lilabai does not corroborate the version of the prosecutrix that Lilabai found injuries on her neck and she enquired about the cause of injuries. It is curious that the prosecutrix has not chosen to go to the field of Upendra where number of villagers, including her husband, were working. The same was located at a closer distance than the village. It was even visible from the scene of offence. If the incident had really taken place her natural conduct would have been to first go to her husband and report the incident to him. This, she has not done. She has chosen to go to her house in the village. She has reported the incident to her mother-in-law. She has, thereafter, proceeded to the house of Sarpanch. She has taken the Sarpanch along with her and shown him the scene of offence. She, the Sarpanch and her husband have, thereafter, proceeded to the police station where she has lodged the complaint. 14. The defence has suggested that the relations between the Sarpanch and the in laws of the accused are strained. The Sarpanch is shown to have taken the prosecutrix to the police station for lodging a complaint. Without dilating into the merit of the defence version, one has to decide whether the evidence on record can be relied upon to bring home an offence of indecent assault As far as the prosecutrix is concerned, she has not stopped short of making out an offence of indecent assault. She has gone whole hog and deposed to an offence of rape which version I have found to be false. Hence, it would be risky to rely on any part of her evidence unless the same is corroborated by some independent evidence, on record. One circumstance which is pressed into service, is of finding of scratches on her neck. This circumstance, taken by itself cannot lend assurance to an offence of indecent assault having been committed upon her. Such scratches can also be caused if certain branches of a tree coming in contact with the neck of the prosecutrix. One circumstance which is pressed into service, is of finding of scratches on her neck. This circumstance, taken by itself cannot lend assurance to an offence of indecent assault having been committed upon her. Such scratches can also be caused if certain branches of a tree coming in contact with the neck of the prosecutrix. This possibility cannot be ruled out in view of the negative findings in respect of the nail clippings of the accused. 15. The next circumstance which is pressed into service are the injuries found on the person of the accused and the semen stains found on the short pant of the accused. As far as semen stains are concerned, accused is a married man. Hence, the said finding cannot necessarily implicate him in the instant crime. As far as the injuries found on the person of the accused arc concerned they are consistant with his being involved in a sexual act on a rough surface or ground. However, if regard is had to the absence of any other injury on the person of the prosecutrix, which injury one would expect had the accused tried to force himself upon an unwilling prosecutrix, it is difficult to hold that the case is proved beyond reasonable doubt. If the clothes of the prosecutrix had become wet and soiled with mud it is strange that her clothes were not found to be stained with mud by the Chemical Analysers. In any event, the possibility of the prosecutrix being a willing party to the entire episode cannot be totally ruled out In the circumstances, I find it difficult to separate the grain from the chaff for the purposes of placing reliance on any part of the testimony of the prosecutrix so as to bring home the guilt against the accused either for an offence under Section 354 or under Section 323, I.P.C. 16. For the foregoing reasons, I find that the prosecution has failed to prove, beyond reasonable doubt, that the accused has committed an offence punishable either under Section 354 or under Section 323 of the Indian Penal code. In the result, the appeal succeeds. For the foregoing reasons, I find that the prosecution has failed to prove, beyond reasonable doubt, that the accused has committed an offence punishable either under Section 354 or under Section 323 of the Indian Penal code. In the result, the appeal succeeds. The order of conviction and sentence imposed on the accused under Sections 354 and 323, I.P.C., by the impugned ORDER and order dated the 3rd of January, 1987, passed by the learned Additional Sessions Judge, Nasik, in Sessions Case No. 157 of 1986, is set aside and the appellant-original accused is acquitted. His bail bonds shall stand cancelled. Appeal allowed.